Citation Nr: 0705157
Decision Date: 02/22/07 Archive Date: 02/27/07
DOCKET NO. 04-18 072 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an effective date earlier than November 27,
2001 for the grant of service connection for status post
radical orchiectomy, left, partial, with partial orchiectomy,
right, nonfunctional and award of special monthly
compensation for anatomical loss of a creative organ.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J.G. Reinhart, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1975 to
September 1980 and from December 1980 to September 1984.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an August 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California, that granted service connection for
the above disability and assigned a 30 percent rating and
award of special monthly compensation effective in November
2001.
In September 2006, the veteran testified at a videoconference
hearing before the undersigned Acting Veterans Law Judge. A
transcript of the hearing is of record.
Since the RO last considered the issue on appeal, the veteran
has submitted additional evidence which was received in April
2006. A supplemental statement of the case (SSOC) has not
been issued by the RO addressing this additional evidence,
and the veteran has not waived his right to have this
additional evidence initially considered by the RO. See 38
C.F.R. §§ 19.31, 20.1304 (2006). The submitted evidence
consists of a pathology report and clinical note providing a
diagnosis and reference to a right orchiectomy, both dated in
March 2006. The veteran also refers to a letter from a VA
physician stating that the veteran was disabled from March to
June 2006. This evidence is not pertinent to the issue on
appeal because it is evidence only of a current physical
condition and not evidence of when a claim was filed for
entitlement to service connection. As such, the Board will
proceed to adjudicate this claim. See 38 C.F.R. 20.1304
(2006).
In October 2006, the veteran again submitted additional
evidence consisting of a September 2002 statement by the
National Commander of the American Legion before a Veterans
Affairs Committee and a copy of Department of Defense (DOD)
Instruction number 1332.36, dated in February 1994. In
addition, he waived consideration of this evidence by the RO.
The appellant has requested equitable relief under the
provisions of 38 U.S.C.A. § 503 (West 2002). A grant of
equitable relief is solely within the discretion of the
Secretary of Veterans Affairs. It is not within the Board's
jurisdiction. See Darrow v. Derwinski, 2 Vet. App. 303
(1992). The request will be referred to the Chairman of the
Board for consideration under 38 C.F.R. § 2.7 (2006) after
this decision of the Board has been issued.
FINDINGS OF FACT
1. A claim for service connection for loss of one testicle
and partial loss of the other testicle was received by the RO
on November 27, 2001.
2. There was no informal claim, formal claim, or written
intent to file a claim for service connection for loss of
either testicle prior to November 27, 2001.
CONCLUSION OF LAW
The criteria for an effective date earlier than November 27,
2001 for the grant of service connection for status post
radical orchiectomy, left, partial, with partial orchiectomy,
right, nonfunctional, and award of special monthly
compensation for anatomical loss of a creative organ, have
not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §
3.400 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), (codified
at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West
2002)), imposes obligations on VA in terms of its duty to
notify and assist claimants. Under the VCAA, when VA
receives a complete or substantially complete application for
benefits, it is required to notify the claimant and his
representative, if any, of any information and medical or lay
evidence that is necessary to substantiate the claim. 38
U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) request that the claimant provide any evidence in his
possession that pertains to the claim. VCAA notice must be
provided prior to the initial unfavorable adjudication by the
RO. Id. at 120.
The VCAA notice requirements apply to all five elements of a
service connection claim. The five elements are: 1) veteran
status; 2) existence of a disability; (3) a connection
between the veteran's service and the disability; 4) degree
of disability; and 5) effective date of the disability.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
VA satisfied the duty to notify by means of a letter to the
veteran from the RO dated in April 2002. This notice was
provided to the veteran prior to initial adjudication of the
claim by the RO in August 2002. The veteran was told of the
requirements to establish a successful claim, advised of his
and VA's respective duties, and asked to submit information
and/or evidence, which would include that in his possession,
to the RO. He was told that, in the event of a grant of
benefits, if information or evidence was received within one
year from the date of the April 2002 letter, VA may be able
to pay him from the date that VA received his claim.
Otherwise, VA could only pay him from the date the evidence
was received by VA. The timing and content of this letter
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b). In January 2004, the RO sent the
veteran notice that in order to establish entitlement to an
earlier effective date he must provide evidence that he
submitted a claim for his disability prior to November 27,
2001. An additional VCAA letter was sent to the veteran in
August 2006 providing more extensive notice as to assignment
of effective dates and disability ratings.
To the extent that notice regarding assignment of disability
ratings did not precede the initial adjudication by the RO,
no prejudice to the veteran can result as his disability on
appeal is evaluated at the maximum available rating,
effective since the date of claim. Because the veteran has
had an opportunity to submit additional argument and
evidence, and thereby, a meaningful opportunity to
participate effectively in the processing of his claim, he
has not been prejudiced by any deficiency of pre-initial
adjudication notice regarding assignment of effective dates.
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Indeed, the
veteran has submitted extensive additional evidence since the
January 2004, including testimony during the September 2006
video-conference hearing. Additional process was afforded
the veteran by issuance of the March 2004 statement of the
case and the May 2005 supplemental statement of the case.
For these reasons, the veteran has not been prejudiced by the
timing of the VCAA notice.
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim. VA has requested all records
identified by the veteran. A medical examination was not
necessary to decide the veteran's claim for service
connection; the claim has been granted and the maximum
disability rating has been assigned. All procedural
documents relevant to this claim are associated with the
claims file. The veteran has not requested that VA assist
him in obtaining any evidence relevant to the issue on
appeal.
The Board therefore finds that the duty to notify and the
duty to assist pursuant to the VCAA have been satisfied.
See 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. §§
3.159(b), 20.1102 (2006); Pelegrini v. Principi, 18 Vet. App.
112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). The veteran has not claimed that VA has
failed to comply with the notice requirements of the VCAA.
Earlier Effective Date
The veteran contends that he is entitled to an effective date
earlier than November 27, 2001 for grant of service
connection for the disability on appeal. Specifically, he
contends that he is entitled to an effective date of
September 14, 1984, the date of separation from active duty.
38 U.S.C. § 7104 indicates that Board decisions must be based
on the entire record, with consideration of all the
evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000),
the Court held, in pertinent part, that the law requires only
the Board address its reasons for rejecting evidence
favorable to the claimant. The Federal Circuit has also held
that the Board must review the entire record, but does not
have to discuss each piece of evidence. Gonzales v. West,
218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
38 U.S.C.A. § 5110(a) states, "unless specifically provided
otherwise in this chapter, the effective date of an award
based on an original claim, a claim reopened after final
adjudication, or a claim for increase, of compensation,
dependency and indemnity compensation, or pension, shall be
fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application therefore."
38 U.S.C.A. § 5110(a). 38 U.S.C.A. § 5110(b) provides for
grant of service connection effective the date of discharge
or release from service if the claim was received within one
year or that discharge or release.
The regulation implementing 38 U.S.C.A. § 5110 provides that
the effective date of an award of disability compensation
based on direct service connection shall be the day following
the veteran's separation from active service or the date
entitlement arose if a claim is received within one year
after separation from service; otherwise, the effective date
shall be the date of receipt of claim, or date entitlement
arose, whichever is later. 38 C.F.R. § 3.400(b)(ii)(B)(2)
(2006).
A claim, or application, is defined as a formal or informal
communication in writing requesting a determination of
entitlement or evidencing a belief in entitlement, to a
benefit. 38 C.F.R. § 3.1(p).
Under 38 C.F.R. § 3.155(a), the veteran or a representative
of the veteran can file an informal claim by communicating an
intent to apply for one or more VA benefits. The benefit
sought must be identified, see Stewart v. Brown, 10 Vet. App.
15, 18 (1997), but need not be specific, see Servello v.
Derwinski, 3 Vet. App. 196, 199 (1992). See also 38 C.F.R. §
3.1(p) (2006).
In determining when a claim was received, the Board must
review all communications in the claims file that may be
construed as an application or claim. See 38 U.S.C.A. §
7104(a) (West 2002); Quarles v. Derwinski, 3 Vet. App. 129,
134 (1992).
In this case, the first evidence of record of any
communication from the veteran requesting service connection
for loss of either testicle during service was received by
the RO on November 27, 2001. There is no evidence of record
that either a formal or an informal claim for entitlement to
service connection for this disability was filed by the
veteran or his representative prior to November 27, 2001.
Nor does the veteran contend that he filed a claim earlier
than this date. Indeed, he argues that he did not file a
claim prior to November 27, 2001 because he did not know that
he was eligible for benefits until shortly before that date.
38 U.S.C.A. § 5110 is clear that a grant of service
connection cannot become effective prior to the date of the
claim, unless specifically provided for otherwise in Title
38, Chapter 51 of the United States Code. No provision in
Chapter 51 provides for an effective date earlier than the
date of the claim due to lack of knowledge of possible
eligibility on the part of the veteran, whatever the cause of
that lack of knowledge.
The veteran has argued that the failure of VA to inform him
of available benefits should result in assignment of an
earlier effective date. The Board now addresses that
argument to the extent that the veteran seeks a remedy in
law. Prior to June 2006, VA outreach services were codified
under 38 U.S.C.A. § 7722, effective since August 1991 and
since June 2006, under 38 U.S.C.A. § 6303. Neither of these
statutes provides for any remedy in the event that VA fails
to advise veterans of benefits to which they may be entitled.
Moreover, the United States Court of Appeals for the Federal
Circuit has held that failure to advise a veteran of
available benefits upon his release from active duty, or to
distribute information to eligible veterans as to benefits to
which they may be entitled, may not serve as the basis for
tolling the time period in § 5110(b)(1). Andrews v.
Prinicipi, 351 F.3d 1134, 1137 (Fed. Cir. 2003). The Federal
Circuit's holding in Andrews, thus prohibits the Board from
assigning an effective date earlier than that provided for by
38 U.S.C.A. § 5110 on the basis of failure to advise the
veteran of available benefits.
Because a claim for service connection for this disability
was not received within one year of separation from active
duty, an effective date of the day after separation from
active duty cannot be assigned under law. Similarly, because
the record is absent for any indication that VA received a
claim for entitlement to service connection for the
disability on appeal prior to November 27, 2001, an effective
date earlier than November 27, 2001 cannot be assigned under
law. Therefore, the veteran's appeal for an earlier
effective date for grant of service connection for the
disability on appeal, and the associated award of special
monthly compensation, must be denied. In a case where the
law and not the evidence is dispositive, the claim should be
denied because of the absence of legal merit or the lack of
entitlement under the law. Sabonis v. Brown, 6 Vet. App.
426, 430 (1994).
ORDER
Entitlement to an effective date earlier than November 27,
2001 for the grant of service connection for status post
radical orchiectomy, left, partial, with partial orchiectomy,
right, nonfunctional and award of special monthly
compensation for anatomical loss of a creative organ, is
denied.
____________________________________________
C. CRAWFORD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs